Monthly Archives: September 2013

As I write this post, the shutdown countdown has reached 00.00 on the east coast. The shutdown is officially upon us.

I thought it would be both interesting and educational to reveal the details of what happens when Congress fails to adopt a budget and a federal district court must comply with something called the Anti-Deficiency Act. Basically, the Anti-Deficiency Act says a federal entity like the judiciary can’t spend money it doesn’t have. There are two exceptions and roughly speaking those exceptions are these: (1) money can be spent to protect life or property in an emergency and (2) money can be spent if necessary to further Constitutional and statutory commands that require action. It is also very important to realize that federal employees are subject to criminal penalties if they violate the Act.

Specifically, the Act prohibits federal employees from:

*making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law. 31 U.S.C. § 1341(a)(1)(A). (Emphasis added.)

*involving the government in any obligation to pay money before funds have been appropriated for that purpose, unless otherwise allowed by law. 31 U.S.C. § 1341(a)(1)(B). (Emphasis added.)

*accepting voluntary services for the United States, or employing personal services not authorized by law, except in cases of emergency involving the safety of human life or the protection of property. 31 U.S.C. § 1342. (Emphasis added.)

*making obligations or expenditures in excess of an apportionment or reapportionment, or in excess of the amount permitted by agency regulations. 31 U.S.C. § 1517(a).

Therefore, when there is no budget and the money has run out from past appropriations or other sources of funds (such as fees), a shutdown must take place. Shutting down requires a plan.

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEBRASKAFY 2014 SHUTDOWN PLANPursuant to Volume 13, Chapter 2, ‘ 220.30 of the Guide to Judiciary Policy and the Director=s memorandum dated September 24, 2013, this court adopts the following plan for operating during a Judiciary shutdown. A Judiciary shutdown occurs after all funding derived from fees and no-year appropriations has been exhausted1 and a continuing resolution or appropriations bill is not enacted.1. Declaration of Policy. The policy of the United States District Court for the District of Nebraska is that essential judicial branch activities will continue. The activities set forth in this plan are essential, and the employees who perform these duties are deemed essential.2(a) Because the spirit of the Anti-Deficiency Act requires a very narrow interpretation regarding the performance of other functions by judicial branch personnel during a shutdown period, the only work considered essential and thus permissible includes:(1) activities necessary to support the exercise of the Article III judicial power, i.e., the resolution of cases in which there is a constitutional or statutory grant of jurisdiction;1The Judiciary can continue operations with funding derived from all possible sources of fees and no-year appropriations as previously authorized by the Executive Committee of the Judicial Conference. On September 24, 2013, the AO estimated those funding sources would be available to continue operations for approximately ten business days. During this period, efforts should be made to implement an orderly shutdown to take effect after these funding sources are exhausted. An orderly shutdown is defined as having sufficient opportunity to protect and secure court property, typically of a three-hour or less duration. It is not defined as having sufficient opportunity to complete assigned tasks, projects, etc. If a shutdown occurs and employees are furloughed, all work of those employees ceases, court property is protected and secured, and employees are released.2 The AO’s Office of General Counsel has issued an opinion that the salaries of Article III, bankruptcy, and magistrate judges would be payable notwithstanding a lapse in appropriations. The Judiciary would need to seek authorization from the Secretary of the Treasury to continue to pay these judges’ salaries during a government shutdown. The AO is confident that the Secretary of the Treasury would authorize such prompt payment for Article III judges. It is less certain whether the Secretary of the Treasury would authorize the prompt payment of non-Article III judges’ salaries during a Judiciary shutdown. If that was not authorized, the non-Article III judges’ salaries would be paid retroactively upon the enactment of the Judiciary’s appropriation act. Retroactive payment of salaries for government employees who perform essential work is expected to occur. It is unclear whether Congress would authorize such payments to employees who are furloughed.2(2) emergency activities necessary for the safety of human life and the protection of property; and(3) activities otherwise authorized by law, either expressly or by necessary implication, including:(A) items guaranteed by the Constitution (e.g., Article III judges= salaries);(B) activities funded with available no-year appropriations (e.g., jury system3 and federal defender program);(C) entitlement programs (e.g., Judicial Survivors Annuities System, which is partly funded by judges= salaries); and(D) minimal activities needed for an orderly shutdown of other official functions.(b) This court will continue to 1) hear and decide cases without interruption; 2) timely file and process all filings, motions, orders, emergency applications, and other litigation documents; 3) collect and deposit fees and costs into the Treasury; 4) accept and process new civil and criminal cases; 5) continue regular administration of the jury system, including payment of jurors; 6) produce reports on bail or release, or provide other services required by judges in the performance of their constitutional duties; 7) supervise potentially dangerous offenders (i.e., individuals under supervised release, probation, or parole) and provide needed treatment services; and 8) handle new cases or maintain existing cases, as necessary to assist the court in implementing its orders and judgments.(c) Staff will not perform functions that are unrelated to essential activities and set forth in this plan (e.g., ancillary administrative tasks, non-essential training, and other similar activities). The court will furlough, i.e., place in a temporary non-pay status because of lack of funds, any employees who perform duties that are not authorized by this plan. If any employees are to be furloughed, they must first have sufficient opportunity to protect and secure court property.(1) Furloughed employees will not be paid unless Congress authorizes funding. After the shutdowns in 1995 and 1996, Congress enacted legislation specifically authorizing retroactive pay for both federal employees who worked in non-pay status as well as furloughed federal employees. However, there is no guarantee that the current Congress will authorize retroactive pay for furloughed federal employees in the event of a shutdown. Shutdown furloughs are not considered a break in service and are generally creditable for retaining benefits, except in long periods of absence.3Payments to jurors may be delayed during a Judiciary shutdown.3(2) A furlough does place the employee in a non-pay status, thus possibly impacting payment of premiums for certain benefits if a shutdown is prolonged. The fact sheet, Effects of Extended Leave Without Pay, may be to counsel employees about benefits and the impact of a furlough.(3) Staff who are furloughed cannot work voluntarily or be required to work. Staff performing essential functions and working in a non-pay status should expect to be paid once appropriations are enacted. Congress will have to take affirmative action to authorize pay for staff who are furloughed.(4) Employees may not take annual or sick leave instead of being furloughed because employees would still be in a pay status and funds would not be available for payment.(d) This court suspends all activities not authorized in this plan. These activities may include, but are not limited to, the following: 1) hiring employees and related pay actions; 2) purchasing equipment, supplies, and contractual services;4 3) entering into new contractual obligations; 4) performing non-essential administrative tasks; 5) compiling non-essential statistics; 6) training; and 7) travel.5(1) The suspension of such activities will be carried out in an orderly manner to ensure that all records and statistics are preserved and secured, and that resumption of full activities will begin without limits once funding is restored.(e) The court will advise the following individuals of the level of services required to maintain continuing operation of the court system:(1) U.S. Marshal, District of Nebraska;4Even if a contract is currently in place, any actions that would result in further expenses under the contract will be curtailed unless they are clearly in support of designated essential activities. Further, payment on any goods and services acquired during a lapse in appropriations could have payment delayed until funds become available through another continuing resolution or an appropriation. The court=s Contracting Officer (CO) will notify contractors prior to an appropriations lapse as directed by the Procurement Management Division.5All court personnel will conclude their travel and return to their normal duty station prior to shutdown. Travel can continue if it is deemed absolutely necessary to the performance of essential work (e.g., case resolution activities) as described in section 1(a) of this plan. If the travel is not required for purposes of an orderly shutdown, or if the individual is not performing essential work on travel, then the travel should not occur if it would incur further expense to the government.4(2) Director, Federal Protective Service, Department of Homeland Security; and(3) Director, Public Building Service, U.S. General Services Administration.2. Judges and Their Staffs.(a) Under the Constitution, judges are entitled to their salary, regardless of any lapse in appropriations, and will continue to work full-time. Each judge may employ staff, such as law clerks and judicial assistants, which this court finds essential to the resolution of cases.(b) Conferences, hearings, jury trials, and non-jury trials will continue to be conducted, and new cases will be accepted. Apart from pre-existing criteria such as the Speedy Trial Act, no distinctions or priorities will be drawn between criminal and civil cases. An exception may arise if the Department of Justice instructs U.S. attorneys to limit their appearances to those cases essential to the protection of life or property. The judges will be sympathetic to requests for continuances or other motions necessitated by phase-down activities in other governmental agencies.(c) Although most judges will employ their full complement of supporting personnel to perform constitutionally mandated duties, staff will not be employed or assigned to work on ancillary projects, such as preparing materials for an article or speech, or to perform non-essential administrative tasks.3. Magistrate Judges and Their Staffs.(a) Because magistrate judges= salaries are fixed by statute, they may not be furloughed without pay and therefore should continue to work full-time during an appropriation lapse.(b) All routine judicial activities performed by magistrate judges, from the conduct of preliminary hearings to the exercise of delegated trial authority, will continue. Each judge may employ staff, such as law clerks and judicial assistants, which this court finds essential to the resolution of cases.4. Clerk=s Office.(a) This court finds that clerk=s office staff who support the court in case-resolution activities are essential. These activities include, but are not limited to, the following: 1) ensuring the proper and timely processing of all filings, motions, orders, emergency applications, and other litigation documents; 2) collecting and depositing fees, costs, and criminal debt payments into the Treasury; 3) accepting and processing new civil and5criminal cases; and 4) performing regular administration and support to both petit and grand juries, including payment of jurors in accordance with pre-existing procedures.(b) The jury system will operate as necessary to assist the courts in the performance of Article III duties. Clerks and other personnel will provide their normal level of assistance.(c) The essential functions and employees performing these functions are listed below.(1) Administration and Oversight of Office=s Statutory Duties(A) Clerk(B) Chief Deputy Clerk(2) Court Reporting and Recording(A) Court Reporters(B) Courtroom Deputies(C) Case Management Specialists(3) Interpreting(A) Staff Court Interpreter(4) Intake, Cashiering, Courtroom Support, Docketing, Quality Control, Case Management, and Records Management(A) Operations Manager(B) Operations Administrator(C) Court Services Supervisor(D) Courtroom Deputies(E) Case Management Specialists(F) Administrative Specialist(5) Jury Management(A) Jury Administrators(B) Courtroom Deputies(C) Case Management Specialists(d) The clerk and chief deputy clerk will determine the limited number of employees needed to perform essential functions 24 hours prior to an anticipated appropriations lapse, based on the court=s schedule and essential work demand. All employees will be on call. Employees who are not required to report will be furloughed. The clerk and chief deputy clerk may move6employees on or off the essential list based on changing circumstances in the court and the length of the appropriations lapse.5. Probation Office.(a) This court finds that the services of probation office staff in support of the exercise of the judicial power of the United States are essential.(b) Most activity of the probation offices will continue. If delayed, certain activities would pose a threat to the safety of human life and the protection of property. Thus, supervision of potentially dangerous defendants will be maintained and needed treatment services will be provided. Even in non-emergency situations, however, the probation office will continue to handle new cases or maintain existing cases, as necessary, to assist the court in implementing orders and judgments.(c) The essential functions and employees performing these functions are listed below.(1) Administration and Oversight of Office=s Statutory Duties(A) Chief(B) Deputy Chief(2) Presentence Reports and Investigations(A) Supervising Probation Officers(B) Probation Officers(C) Probation Officer Assistants(3) Supervision(A) Supervising Probation Officers(B) Probation Officers(C) Probation Officer Assistants(4) Officer Support, Records Management, Case Management, and Quality Control(A) Administrative Assistants(B) Probation Support Technicians(C) Community Resource Specialist(D) Data Quality Analyst(E) Senior Clerks(d) The chief and deputy chief will determine the limited number of employees needed to perform essential functions 24 hours prior to an anticipated7appropriations lapse, based on the court=s schedule and essential work demand. All employees will be on call. Employees who are not required to report will be furloughed. The chief and deputy chief may move employees on or off the essential list based on changing circumstances in the court and the length of the appropriations lapse.6. Pretrial Services Office.(a) This court finds that the services of pretrial services staff in support of the exercise of the judicial power of the United States are essential.(b) Most activities of the pretrial services office will continue. If delayed, certain activities would pose a threat to the safety of human life and the protection of property. Thus, supervision of potentially dangerous defendants will be maintained and needed treatment services will be provided. Even in non-emergency situations, however, the pretrial services office will continue to handle new cases or maintain existing cases, as necessary, to assist the court in implementing orders.(c) The essential functions and employees performing these functions are listed below.(1) Administration and Oversight of Office=s Statutory Duties(A) Chief(B) Supervising Pretrial Services Officer(2) Pretrial Services Investigations and Supervision(A) Pretrial Services Officers(B) Pretrial Services Officer Assistants(3) Officer Support and Quality Control(A) Data Quality Analyst(d) The chief and supervising officer will determine the limited number of employees needed to perform essential functions 24 hours prior to an anticipated appropriations lapse, based on the court=s schedule and essential work demand. All employees will be on call. Employees who are not required to report will be furloughed. The chief and supervising officer may move employees on or off the essential list based on changing circumstances in the court and the length of the appropriations lapse.87. Shared Services.(a) This court finds that services needed to support the performance of essential duties for the judges, clerk=s office, probation, and pretrial services will continue, and the shared services staff who perform these services are essential.(b) The essential functions and employees performing these functions are listed below.(1) Information Technology: Maintenance and support of all systems needed to support essential functions.(A) IT Director(B) Automation Support Technician(C) Programmers(D) Court Technology Specialist(E) PC Support Specialist(F) PC System Administrator(G) Help Desk/Software Trainer(2) Administrative Services: Performance of duties related to essential duties of judges, clerk=s office, probation, and pretrial services staff.(A) Supervisor of Administrative Services(B) Budget Analyst(C) Financial Specialist(D) Facilities/Procurement Technician(E) Property/Procurement Specialist(F) Financial Technician(G) Accounting Technician(3) Human Resources. Performance of duties related to essential duties of judges, clerk=s office, probation, and pretrial services staff.(A) HR Manager(B) HR Specialist(d) The shared services management team will determine the limited number of employees needed to perform essential functions 24 hours prior to an anticipated appropriations lapse, based on the court=s schedule and essential work demand. All employees will be on call. Employees who are not required to report will be furloughed. The shared services management team may move employees on or off the essential list based on changing circumstances in the court and the length of the appropriations lapse.98. Public Defenders and Criminal Justice Act Attorneys.(a) Attorneys and essential support staff in federal defender offices and court-appointed counsel will continue to provide defense services, as needed.(b) Compensation of court-appointed counsel will be paid in accordance with Administrative Office=s pre-existing procedures.(c) To the extent that public defenders and their staff experience a lack of work because U.S. attorneys terminate prosecutions, they will be furloughed. The federal defender will determine what personnel, if any, will not be needed.9. Bankruptcy Court.(a) The bankruptcy court should continue those operations that may be considered part of the exercise of the judicial power of the United States or which preserve life or property in accordance with its shutdown plan.(b) Because their salaries are fixed by statute, bankruptcy judges may not be furloughed without pay, and therefore should continue to work full-time during an appropriations lapse.(c) The judges of each bankruptcy court will determine which bankruptcy court personnel will be needed.(d) Each bankruptcy judge should, to the extent practical, hear arguments and issue orders and judgments only in adversary proceedings, other controversies, or where essential to protect property.

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Judge Mark Bennett has many talents. Among those being he makes his own brand of hot sauce. Today, I received in the mail (after the US Marshals tore the package apart) two bottles of Mark’s hard labor. I look forward to serving my sentence.

Leave it to a plaintiff’s personal injury lawyer to speak the truth. Vince and I where talking right before I gave a luncheon speech to the Nebraska Association of Trial Attorneys. Since Vince is the Chairman of the Democratic Party in Nebraska, we were gossiping about who might replace Judge Bataillon, who has announced his intention to take senior status.

Near the end of the conversation, Vince said something insightful. It went roughly like this: “I hope whoever it is realizes what pain they will inflict and what pain they will observe as they sentence people.” He added, “It must do something to you.” Vince was right, and in spades.

Now, this is not a “poor me” story about federal trial judges. We are all big boys and girls with egos to match. But, let’s also be clear about something else. The candidate to replace Joe Bataillon, or any other federal judge, will be unprepared for the impact of criminal sentencing on the sentencing judge.

The federal sentencing regime is the one aspect of being a federal trial judge for which there is no comparable experience that a judicial candidate can draw upon for help. Trust me. I don’t care whether you were a prosecutor, criminal defense lawyer, civil practitioner, a judge from the state courts, or even a federal magistrate judge, when it comes to federal criminal sentencing, you’re unprepared.

The best way to think about it is to ask yourself this question: “Am I a willing judicial executioner, a person who consciously does great harm to other human beings by faithfully executing the extraordinarily harsh national criminal laws?” Those who covet a federal trial judgeship should think hard about this truth before pursuing the job.

I doubt they will. Instead, they will say to themselves, “I’m different. I am not weak. I am strong-minded.” Or, “I’m just doing what the law requires.” Or, “They did it to themselves. They deserve it.” Or, “Someone has to do it, and maybe I can improve things.” The rationalizations are endless.

But stripped of the BS that allows good people to do bad things, here is the essential truth: When sentencing people, federal trial judges literally and consciously destroy lives and most do so on a daily basis. So, I have a bit of advice for those who wish to replace Judge Bataillon. Be careful what you ask for. You have no idea what the hell you’re getting into.

RGK

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She worked as a prostitute, this white girl. She had connections to the Mexicans. She put her black pimp in contact with the Mexicans, and the two–the pimp and the prostitute–went into the meth business. It nicely supplemented the pimp’s crack operation. The pimp was sweet on the girl, but she didn’t reciprocate his affections. But she did live with him. She cleaned his house, cooked his meals and let the customers in. Upstairs, he filmed pornographic movies but she didn’t participate. He liked to have sex with one girl while another “tweaked” on the meth crystals he dropped off the bed while he thrashed around with the first girl. They caught the white girl on telephone intercepts, and that brought down the white girl, the black pimp and the Mexicans. I sentenced her during diversity week.

I must be brief. I am off to Omaha early this morning for a fun-filled day of criminal law. I will hold eight sentencing hearings. All of the defendants are likely to receive prison time.

As a federal trial judge, I read tea leaves and follow precedent. Almost never am I called on to apply my own theory of Constitutional adjudication. That said, it is helpful to understand what the “big boys and girls” are thinking. That is particularly true of the “big boys and girls” who are conservatives. After all, they tend to dominate the current makeup of the Supreme Court and the Courts of Appeal. In particular, the idea of “judicial restraint” that allegedly animates so many “conservative” decisions is a notion that is, at least for me, desperately in need of clarification.

With that in mind, I heartily recommend Joel Alicea’s* short essay entitled Real Judicial Restraint in the Fall 2013 issue of National Affairs. It is a readable and cogent explanation of the separate concepts of “judicial restraint” that have moved, are now moving or should move judicial conservatives. Alicea has his favorite, but it is the taxonomy that I find most helpful. The essay is well worth reading if you desire to gather intelligence on the current conservative judicial mind and the notion of restraint.

RGK

*The author is a law clerk for Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. His piece receives praise from Ed Whelan the prominent conservative legal commentator.

PS As is so often the case, I give thanks to Howard Bashman and How Appealing for the tip.

Today, a press release was issued from the Administrative Office of the United States Courts stating the following:

In the event of a government shutdown on October 1, 2013, the federal Judiciary will remain open for business for approximately 10 business days. On or around October 15, 2013, the Judiciary will reassess its situation and provide further guidance. All proceedings and deadlines remain in effect as scheduled, unless otherwise advised. Case Management/Electronic Case Files (CM/ECF) will remain in operation for the electronic filing of documents with courts.

By the way, this is because the judiciary receives certain non-appropriated funds (think filing fees) and because there is a balance in something called “no-year appropriations.” That money is estimated to run out in approximately 10 business days.

Additionally, the active district judges of our court also adopted a very detailed “shutdown plan” today. It is 10 pages long, single spaced. Among other things, it addresses what happens after 10 days.

In sum, you cannot imagine the amount of work (and anxiety) that has been created because Congress merely threatens a shut down. If a shutdown occurs, this nightmare will get progressively worse.

Yesterday afternoon, I drove to Omaha to attend the second annual graduation ceremony for offenders under supervision who had successfully completed the intensive Moral Reconation Therapy (MRT) program utilized by the Supervision Unit of our superb United States Probation office. It was a heart-warming experience and, more importantly, a hopeful one.

What is MRT and why does US Probation use it? In answer to that question, consider the following:

*I detest the name “Moral Reconation Therapy” because it sounds creepy and because it is based on a word that is not typically used in modern parlance. The word “conation” is an archaic term for the word “ego” as that term is used in structural models of the mind. “Reconation” means, very roughly, to “reboot” the “ego.”

*Facilitated by specially trained US Probation Officers, MRT is utilized in a group setting over 18 to 20 weeks. Offenders are helped to recognize and more appropriately deal with the moral dimensions of daily living through very practical step-by-step aids. More specifically, MRT seeks to move offenders from a lower, hedonistic level of moral reasoning (pleasure vs. pain) to a higher level where social rules and other people become important.

*MRT is based on the cognitive behavioral therapy (CBT) approach to mental health treatment. CBT (1) focuses on specific problems of daily living and (2) is “action oriented” in the sense that the therapist assists the client in selecting specific strategies to address those specific problems. MRT then is properly seen as a branch of the more widely known and accepted CBT tree.

*Because MRT focuses on morality as an expression of free will, and because MRT is not strictly behavioral in orientation, one need not fear that the treatment is a “Clock Work Orange” approach to dealing with offenders.

*There is good evidence that MRT has a small but statistically significant relationship to lowered rates of recidivism.

*MRT is only small part of the overall supervision of offenders, but it is an important one.

Although US Probation has been using MRT for some time, this was only the second “graduation” ceremony. Last year, the coordinator of the MRT program decided that completion of MRT justified a formal recognition of the offenders’ achievement. That ceremony was successful, and so it was duplicated again this year.

The ceremony was held in one of our stately courtrooms in the beautiful Hruska Courthouse in Omaha. Our Chief Judge, Laurie Smith Camp, spoke to the graduates and handed a small token of appreciation to the graduates as each one was formally and individually recognized (and applauded). Two of the graduates spoke. Quite incidentally, I had sentenced those two. Their talks were inspiring. Family, friends, and even prosecutors, filled up the courtroom and then shared refreshments afterwards. I certainly hope these graduation ceremonies become woven into the fabric of the life of our court. They are good for the soul.

One last observation is in order. If we are to reduce the length of prison sentences so as to reduce costs, we must also increase, and substantially so, our ability to supervise offenders when they get out of prison. Providing quality supervision that protects the public requires a lot of time and hard work. That our US Probation Office conducts MRT groups throughout the year for offenders in Omaha, Lincoln and Grand Island in addition to performing the more traditional law-enforcement functions of supervision, exemplifies a smart strategy that can reduce recidivism. FYI to Congress: Supervision that protects the public can’t be done on the cheap, particularly if it is an alternative to incarceration.